Gun owners were understandably concerned to learn this week that the Bureau of Alcohol, Tobacco, Firearms and Explosives maintains a database that contains nearly one billion firearm transaction records. ATF’s disclosure was the result of a records request by Rep. Michael Cloud (R-Texas 27th), which was prompted by an earlier report from the Washington Free Beacon that 54 million records were added to the agency’s database in 2021. While the database exists as a function of long-standing ATF practice and federal law, the records represent a real threat to gun owners and should further motivate gun rights supporters to guard against further government involvement in firearm transactions.
These records are almost certainly not a one-to-one ratio of individual firearm transactions that the federal government maintains in a database. There have only been 414,167,642 NICS checks since the federal background check system came online in 1998. And, ATF only has records on a small portion of these transactions (those from firearms dealers that have gone out of business). While NRA is working to determine exactly what this large number of “records” refers to, the very existence of the database should serve as a reminder of the danger of centralized firearm registries.
Background
Federal law requires those who purchase a firearm at a gun dealer (Federal Firearms Licensee or FFL) to fill out a form 4473. This record of the firearm transfer is then stored by the dealer on their premises. This creates a system whereby if a gun is found at a crime scene, ATF can trace the firearm to the last retail purchase. However, since the records are stored with each FFL, the system is decentralized in a manner that protects against government abuse of gun owner data.
This arrangement was at the heart of the debate over the Gun Control Act of 1968. In 1985, Sen. James McClure (R-Idaho) explained, “The central compromise of the Gun Control Act of 1968—the sine qua non for the entry of the Federal Government into any form of firearms regulation was this: Records concerning gun ownership would be maintained by dealers, not by the Federal Government and not by State and local governments.”
Gun dealers are required to maintain 4473s for 20 years. When a dealer goes out of business, they must send their last 20 years of records to ATF’s National Tracing Center to facilitate firearm traces.
18 USC § 923(g)(4) states,
Where a firearms or ammunition business is discontinued and succeeded by a new licensee, the records required to be kept by this chapter shall appropriately reflect such facts and shall be delivered to the successor. Where discontinuance of the business is absolute, such records shall be delivered within thirty days after the business discontinuance to the Attorney General. However, where State law or local ordinance requires the delivery of records to other responsible authority, the Attorney General may arrange for the delivery of such records to such other responsible authority.
Upon receiving these records, ATF optically scans the 4473s into a digital database. The database is not searchable by a gun owner’s personal information. However, the database is searchable by a firearm serial number, which facilitates the tracing process.
The records are organized in this manner because the federal government is prohibited from creating a firearm registry. 18 U.S.C § 926 states,
No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established. Nothing in this section expands or restricts the Secretary’s authority to inquire into the disposition of any firearm in the course of a criminal investigation.
Moreover, an ATF appropriations rider prohibits the Department of Justice from using government funds to create a firearm registry.
That no funds appropriated herein shall be available for salaries or administrative expenses in connection with consolidating or centralizing, within the Department of Justice, the records, or any portion thereof, of acquisition and disposition of firearms maintained by Federal firearms licensees
Potential for Abuse
Even though the National Tracing Center database cannot be used to connect an individual to the firearms they own, the records have the potential to be abused. In fact, the records maintained by ATF could facilitate gun confiscation.
The National Firearms Act (26 USC § 5845(f)) defines “destructive device” in part as,
any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes
Such items are subject to an onerous taxation and registration regime. It should be noted that the validity of federal law’s so-called “sporting purposes tests” is in doubt following the U.S. Supreme Court’s recognition of the individual right to keep and bear arms for self-defense in District of Columbia v. Heller.
In February 1994, Treasury Secretary Lloyd Bentsen (ATF was then under the Department of the Treasury) announced the reclassification of three models of shotgun as destructive devices. Under Bentsen’s view, the Striker 12/Streetsweeper and USAS-12 shotguns were not “generally recognized as particularly suitable for sporting purposes” and thus met the definition of “destructive devises.” Up until this point, these shotguns had been sold in the same manner as any non-NFA firearm.
In a press release announcing the reclassification, ATF explained how they intended to enforce the new ruling,
ATF will be working with the manufacturers and federally licensed firearms dealers to determine who owns these weapons. All owners will be receiving a notice from ATF with instructions on registering the weapons. Owners will be given 30 days from the time the receive ATF’s notice to register the weapons without payment of the transfer tax. Any weapons not registered within that time will be subject to seizure and forfeiture, and the owner could be subject to a criminal fine of up to $250,000, or up to 10 years in jail, or both.
This is sometimes referred to as a forward trace. Rather than working from a gun found at a crime scene, ATF went to the manufacturers of the newly-restricted firearms and then followed the paper trail forward to the 4473 of the lawful purchasers.
In this instance, gun owners who had complied with the law when purchasing their shotgun were forced to register themselves with the government or forfeit their firearm. It is easy to see how the more modern National Tracing Center database would help to facilitate the further harassment of law-abiding gun owners or even gun confiscation.
The ATF database is all the more concerning, given President Joe Biden and Vice President Kamala Harris’s threats to confiscate commonly-owned semi-automatic firearms. Were Biden able to secure enough support for confiscatory legislation, the information in the National Tracing Center could be employed to forward trace AR-15 rifles from the manufacturer to the initial retail purchaser.
Bad Developments
At present, gun dealers are required to maintain 4473s for 20 years. After that period, FFLs are free to destroy these firearm transaction records. Some of ATF’s materials appear to deliberately omit the 20-year requirement, seemingly in the hopes that FFLs will send all of their records to the National Tracing Center, regardless of age.
Gun control advocates in the Biden administration are trying to extend the time period dealers are required to maintain records indefinitely. Under ATF proposed rule 2021R-05, FFLs would be required to maintain 4473s indefinitely and relinquish all such data to ATF upon going out of business. NRA-ILA is opposed to this rule change.
Under ATFs proposed rule, a wider swath of firearm transaction data would wind up at the National Tracing Center. An even more complete record of firearms transactions in the U.S. would further facilitate gun confiscation.
Vital Safeguards
As previously noted, despite legislative safeguards, the information at the National Tracing Center has the potential to be abused. Therefore, in additional to reforming dealer record retention and the National Tracing Center, gun owners must work to preserve two vital safeguards of gun owner privacy.
First, gun owners must fight attempts to criminalize the private transfer of firearms. Often inaccurately termed “universal background checks,” this legislation can force gun owners into the federal record keeping regime.
Note that the current tracing scheme can only follow most firearms to the first retail sale. The system has no means by which to monitor private firearm transfers done without a government intermediary. Therefore, most Americans’ ability to lawfully transfer firearms without government interference not only allows them to exercise the Second Amendment right without first obtaining government permission, but also acts as an important bulwark against government record keeping, and in turn firearm confiscation.
Second, gun owners must work to protect the right to make their own firearms without government interference. At present, law-abiding individuals in most jurisdictions may manufacture firearms for personal use without involving the government. As the government has no record of the existence of these personal firearms, they increase the futility of a potential confiscation effort.
In recent years, attacks on this longstanding American right have taken the form of a federal and state efforts to restrict access to the materials Americans prefer when constructing their own firearms and state schemes requiring the serialization of homemade firearms.
Given the federal government’s track record, gun owners have every reason to be concerned about the ever-increasing data being stored at ATF’s National Tracing Center. NRA-ILA will work with our allies in Congress to ensure that ATF is faithfully adhering to the existing statutory prohibitions on the retention of firearm transaction data and on ways to strengthen these protections going forward. Moreover, NRA-ILA will continue to work at the federal level and throughout the states to ensure Americans are able to exercise their Second Amendment right by avenues free of any government monitoring.
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